“Irish law particularly may seem odd and
unapproachable to
those who come to it fresh from the perusal of a modern civil
code. What
survives today is a bewildering conglomeration of old and new,
text and
commentary, plain prose and obfuscatory verse.”

(Robin Stacey, The
Road to Judgement p. 15)

Ireland at the beginning of the fifth
century was a pagan
country with a rich oral literature and an elaborate legal
system, also oral.
The subsequent conversion to Christianity made possible the
composition of
written legal texts embodying elements of both the traditional
system and
changes due to Christianity. Some scholars believe that the
authors were
secular writers creating a written version of the traditional
law to balance
the competing system of canon law, others attribute the legal
texts to clerical
authors attempting to create a workable synthesis of old and
new.[1]

Whoever the authors were, they showed a
strong conservative
bias, recording not only legal rules still in practice in the
7th and
8th centuries, when the legal texts were written
down,[2]
but older rules as well.[3]
Their writing thus provides a somewhat blurred window on the
pre-Christian
legal system, which may have preserved institutions going much
farther back,
possibly as far as the period before the different
Indo-European languages
separated. The evidence for that conjecture is in part
linguistic, words in
different Indo-European languages connected with the same
legal/political
institutions, and in part comparative, features that the early
Irish legal
system shared with ancient Indian law. As D. A. Binchy, one of
the leading 20th
century scholars of early Irish law put it in the context of
one such
institution:

“I suggest, then, that the Irish law of
suretyship may well
reflect the various stages in the development of this
institution throughout
the IndoEuropean world.”[4]

None of the original legal texts have
survived in their
original form. What we have are texts dating mostly from the
14th to
16th century that quote chunks of the earlier
works, along with
extensive commentary. From those it is possible to reconstruct
much, but by no
means all, of the original, with some risk of errors in
transmission over the
centuries. The commentary, beginning in the ninth century and
continuing
thereafter, provides additional information, but in many cases
the commentators
may have have misunderstood the original rules in their
attempts to explain and
justify them. We also have copies of non-legal texts such as
the Irish sagas
(tains) and wisdom texts and accounts of Irish institutions in
Ireland under
English rule, some of which may be survivals from the earlier
period.

Our sources present a very imperfect
picture of an elaborate
early legal system. The description of that system that
follows is based on
interpretations of the evidence by twentieth century scholars.
We cannot be
sure which legal rules applied when and where, since surviving
sources combine
material from at least four centuries, possibly considerably
longer. Apparent
inconsistencies may represent different institutions existing
at the same time,
rules from different times, or the different views of
traditional law held by
different scholars.

Tuath and Fine:
Kingdom
and Kingroup

The Ireland described in the law books
was divided intoa
large number of small kingdoms (tuath,
plural tuatha);
modern scholars
estimate that there were about a hundred of them, with a
population of a few
thousand in each. A king might recognize the overlordship of
another and more
powerful king. A king who is overlord of three or four tuatha is referred to as a great king, one who
is overlord of a
large number of tuatha,
the
provincial king of the tains, the Irish sagas, is a king of
great kings. While
the idea of a high king of all Ireland existed and the title
was sometimes
claimed, such a king is mentioned only rarely in the legal
texts and nobody
seems to have made the position a reality, had effective rule
over the entire
island, prior to the Norman conquest of Ireland in the Twelfth
century.

For the most part, an individual had
legal rights only
within his own kingdom although some special categories, such
a poets and
hermits, had rights elsewhere. One exception occurred when the
subject of one
king was killed by the subject of another, both acknowledging
a common
overlord; the procedure for collecting the fine for the
killing was initiated
by the victim’s king taking a hostage, presumably a subject of
the killer’s
king, in the court of their common overlord. Another occurred
when the
inhabitants of two tuaths were given rights against each other
by treaty.

Within the tuath, individuals
were divided into kingroups (fine),
defined as all descendants in the male line of a common
ancestor. The most
important such was the derbfine,
a
kin group of four generations, the descendants of a common
great-grandfather.
Farming land was largely, although not entirely, held by the derbfine, allocated
out to its adult
male members; an individual could sell part of his share only
with the consent
of his kin. He could obtain additional land with income from
his share of the
kin land, in which case one third of it would be entirely his,
two thirds added
to his share of the kin group land. If the purchase was made
with income from
his own exertions, half was entirely his, if income from his
professional
activities—blacksmith, poet, doctor or the like—two thirds. If
the
kin group went extinct, its land was redistributed within a
wider kin group, descendants
of a common ancestor farther up the genealogical tree.

The derbfine, like
the (much larger) diya-paying group in the Somali system, was
responsible for
enforcing the rights of its members if necessary by feud,
sharing in the
payment of damage payments by its members, and sharing in the
collection of
damage payments to its members. One result of the network of
mutual
obligations, which will be discussed later, was to limit the
ability of an
individual to make contracts that might impose costs or
obligations on the
other members of his kingroup, or reduce his ability to
fulfill his obligations
to them.

Marriage law recognized a range of
possible relationships,
depending both on the resources each party brought into the
marriage and the
degree to which the marriage had or had not been approved of
by the woman’s
kin.[5]
The greater the degree to which the marriage had been approved
by the wife’s
kin, the weaker her subsequent ties to them, as reflected in
who got how much
of her possessions when she died and who was entitled to
collect how much of
the fine if she was killed or obligated to pay how much of the
fine for her
offenses. A man would normally have a chief wife, but could
also have a
secondary wife or concubine.

A woman was under the authority first of
her father, then
her husband, then her sons, and had very restricted rights.
She could not, with
some narrow exceptions, serve as a witness, swear oaths, make
contracts or
serve as a surety to guarantee the contracts of others, and
she had only
limited rights with regard to the control of property.

Fostering of children was a common
practice that established
a sort of pseudo-kinship; a man’s foster father had a claim to
a fraction of
the blood-money if his foster son was killed, and related
responsibilities.

Status
and Honor
Price

The legal system described in the
surviving texts included
an elaborate system of status reflected in the honor price of
each individual.
An individual’s honor price determined what he was owed for
offenses against
him, but also the limits to his legal capacity, including the
amount for which
he could contract on his own authority and the weight of his
evidence in a
legal dispute.

The major categories were nemed, roughly speaking noble, non-noble
freemen, and unfree.
Within each there was a range of subcategories determined by
wealth and status.
The nemed class included kings,
lords, clerics and
poets—the honor price of a Bishop or the Abbot of a major
monastery was
the same as that of the highest category of king. Nemeds had a variety of legal privileges,
limiting the degree to
which legal rights could be enforced against them and the
mechanisms for doing
so. Thus the ordinary procedure for distraint, discussed
below, could not be
employed against a nemed,
although
the alternative mechanism of fasting against him to enforce an
obligation could
be. One consequence of the legal advantages of high status
persons, due to both
their high honor price and their nemed
status, was to make contracting with them risky, since it
might prove
impossible to enforce the contract, a problem pointed out in
the period sources.

Among the nemed,
the category of lord depended on the possession of clients,
freemen who had
agreed to a relationship in which the lord provided an advance
of land and/or
stock to the client in exchange for the client providing the
lord with food
rent and some services. Details varied with both the form of
clientship, base
or free, and the status of the client.

The distinction between base and free
clients, along with
the status of the client, determined the terms of the
contract, including the
duties owed and whether the fief eventually became the
property of the client
on the lord’s death (yes if base, no if free). In all cases
the relationship
could be terminated by mutual agreement. If a lord wished to
dismiss a base
client, he had to compensate him with half his honor price
plus what he was
owed for rent and services; if it was the base client who
wished to terminate,
he owed a substantially larger penalty to the lord. In the
case of a free
client, either party could terminate the relationship without
penalty. The
status of the lord depended on the number and type of his
clients

In addition to free clients and base
clients, a lord might
also have dependents of lower status (fuidir), who
could not make any
legal contract without permission of their lord. The lord was
required to
support the client, to pay the fines for any crimes committed
by him or his
family, and entitled to collect the fines for crimes committed
against him. The
fuidir was obliged to carry out any tasks assigned him
by the lord. He
was thus a sort of temporary and voluntary slave, free to
leave at any time,[6]
provided that he surrendered two-thirds of his produce and
left no debts or
obligations behind him. After three generations of clientship
to a lord,
however, the fuidir becomes a senchléithe, a
client tied to the
land and transferred with the land.

The main division among freemen was
between the small farmer
and the strong farmer, the latter having more extensive
property and a higher
honor price than the former. Dependants, such as a man’s wife
or children,
normally had an honor price based on that of the freeman whose
dependant they
were—typically half his honor price according to at least one
of the
texts. A son who farmed independently but on his father’s land
was something
between a freeman and a dependant, with his own honor price
but limits to his
legal capacity.

Among the unfree, the major divisions
were between the
semi-free (or “tenant at will”), who had no land of his own
and no independent
honor price, the hereditary serf, who was bound to the land,
and the slave.
Slaves might be prisoners taken in war, foreigners picked up
by slave traders,
people who had failed to pay a debt or fine and so been
enslaved, or the
descendants of such. They had no legal rights. The master was
liable for the
offenses of his slave and collected compensation for offenses
against his
slave.

Rank was largely but not entirely hereditary and fixed. At
least in theory, a nemed
who failed of his obligations,
such as a king who displayed cowardice in battle, could be
reduced to the
status of a freeman, as could a lord who failed to maintain
the required number
of clients. A freeman could, by acquiring wealth and clients,
achieve an
intermediate status and a higher honor price; if his son and
grandson
maintained the position the grandson could enter the nemed class.

Private
Law:
Contract, Sureties, Pledges and Distraint

The legal sources describe mechanisms
for making and
enforcing contracts which do not appear to depend on either
royal courts or any
centralized mechanism to judge cases and enforce verdicts. As
discussed below,
there are also references to what appears to be curial law,
law enforced in the
court of a king.

Private contract law depended on a
system of sureties, third
parties with rights and obligations connected to the contract.[7]
If you lend me money, part of the procedure is for us to agree
on a naidm surety,
someone who is a witness
to the contract and has agreed to compel me, if necessary by
force, to fulfill
my obligation. We may further agree on a rath
surety, someone who has agreed to repay you, with an
additional penalty of a
third the amount due, if, despite the naidm,
I default—at which point I owe him the money he has paid on my
behalf
plus additional damages. We may also agree on an aitire, a hostage surety, someone who agrees to
surrender himself
to you if I fail to pay and will eventually ransom himself
back by making the
payment plus an additional ransom payment, at which point I
owe him for both
plus an additional penalty which includes the ráth’s honor price. The ráth cannot
go surety for an amount larger than his honor price.

It is unclear exactly how the aitire fitted into the system, with some sources
suggesting that he
was a standing surety, someone who had that obligation with
regard to
particular persons, such as members of his kingroup, rather
than someone
appointed to be a surety for a particular contract, as seems
to have been the
case for naidm and
ráth.[8]
It has also been suggested that the hostage surety may have
been associated
primarily with agreements between kingdoms rather than
ordinary private
agreements.

In addition to sureties to guarantee my
fulfillment of my
half of the contract, additional sureties are needed to
guarantee your fulfillment
of yours, for instance to prevent you from claiming I have not
repaid you when
in fact I have or, more generally, to force you to fulfill
your part of a
contract which entails mutual obligations, as many did.

Another mechanism used to guarantee the
fulfillment of
contracts was the giving of pledges, inanimate hostages. If
the party who had
received the pledge claimed the other had defaulted and the
other was unwilling
to agree to arbitration, the pledge would forfeit. Exactly
what counted as a
legitimate agreement to arbitration is unclear. It might have
been defined as
agreeing to accept someone regarded as qualified to be a
judge, which was a
recognized profession. The same issue arises in the context of
distraint,
discussed below, where legal consequences again depended on
whether or not a
party accepted arbitration.

In some cases a contract was bound by a
mutual exchange of
pledges. This raises a puzzle; if you claimed that I had
defaulted and seized
my pledge, could I respond by seizing yours? One possible
answer is that, as in
the case of hostages more generally,[9]
the pledge was something of more value to the person who gave
it than to the
person who held it, hence that mutual forfeiture could leave
both parties worse
off. That fits some descriptions in the sources of what sorts
of things were
suitable for pledges, but not all.

Freedom of contract within the system
was limited, due to
the network of mutual obligations. We have seen a limited
version of this
problem already in the context of Jewish law—a debtor whose
land
guaranteed his debt was not entirely free to sell the land,
since if he
defaulted the creditor could cancel the sale and seize the
land.

In the Irish system, similar
restrictions appear in a wide
variety of cases. A son was obliged to support his aged
father, so a father
could under some circumstances cancel a contract the son made
that might reduce
his ability to do so. For similar reasons, a dutiful son could
dissolve his
father’s disadvantageous contracts. Husband and wife had
mutual obligations
which gave each the right to cancel some contracts by the
other, with the
details depending in part on the nature of their marriage. If
it was a marriage
on joint property, meaning that husband and wife had
contributed comparable amounts
of the property that supported the couple, either partner
could dissolve the
other’s contracts, with the exception of a contract that was
clearly beneficial
and so posed no risk to the other partner. If it was a
marriage on husband’s
property, his chief wife could cancel the husband’s
disadvantageous contracts,
a lower status wife only his contracts relating to food,
clothing, cattle and
sheep. If it was a marriage on wife’s property, the legal
situation
reversed—the wife could cancel the same categories of the
husband’s
contracts as the husband could of the wife’s in a marriage on
husband’s
property. And in a marriage in which the husband was an
outsider from another tuath
who had
contributed no property, the wife
could dissolve all of the husband’s contracts.

The mutual obligations within the derbfine imposed a similar set of constraints. A
contract that
could threaten the kingroup’s property, such as adoption into
the kindred or
gifts of land, could be annulled by the kingroup.[10]
A contract that did not directly threaten the property but
that might impose
obligations upon the kin could be objected to, after which the
kin would not be
liable for payments due to the principal’s default.[11]
Absent such objection, the kin were to some degree functioning
as involuntary ráth
sureties, and a similar situation
could exist between lord and client. Similarly, kin and lord
could under some
circumstances function as unappointed naidm
sureties.

If one party ended up with an
unfulfilled obligation to
another, there was a formal procedure, distraint, by which he
could be forced
to fulfill it. The claimant entered the defendant’s property
with suitable
witnesses to announce his claim. The defendant then had a
fixed length of time
in which to respond by fulfilling the obligation or agreeing
to arbitration. If
he did not, there was a second entry and, after a further
space of time, a
third. At that point the claimant was entitled to seize the
defendant’s cattle
and move them to a suitably safe location. If the claim was
not satisfied and
arbitration not agreed to, the cattle would forfeit, one by
one over time.[12]

There was a different procedure if the
defendant was a nemed:
fasting, a sort of ritualized
hunger strike. Details are not clear, but apparently the
plaintiff fasted
outside of the nemed’s
house,
possibly from sundown to sunrise, which would cover the main
evening meal.
While the fast continued the nemed
was not entitled to eat until he had satisfied the claim by
giving a pledge or
appointing a ráth
surety; if he ate
without doing so, he owed double damages. At some point after
the fast, the
claimant was entitled to distrain property to satisfy his
claim.

Private
Law:
Offenses, Damage Payments, and Feud

The Irish system for dealing with
offenses such as robbery, assault
or killing was, like the Icelandic system, based on feud and
damage payments. In
both, offenses were expected to be open rather than concealed.
In Iceland
secret killing was regarded as shameful and eliminated some
potential legal
defenses, in Ireland it doubled the damage payment owed.

In Ireland as in Somalia, there was a
pre-existing
coalition, in Ireland the kingroup, responsible for both
pursuing feud on
behalf of a wronged member and assisting with the payment of
damages owed by a
member. The Icelandic wergeld, like the diya
in Muslim and
Somali law, was a
fixed amount for the killing owed to the heirs of the victim.
Under the Irish
system, the fine was a fixed amount for the life of the
victim, the same for
all freemen,[13]
plus payments to his kin based in each case on the honor price
of the kinsman
and the closeness of the relationship. The payment went to
both paternal and
maternal kin and to foster kin as well, so not limited to the
derfine. Until the
payment was made, the
victim’s kin were entitled to hold the killer prisoner
awaiting payment, to
kill him, or to sell him into slavery.

One feature that the Irish system
shared, oddly enough, with
the Somali was the institution of sick-maintainence. Under
Irish law, the party
responsible for an illegal injury was obligated to maintain
the victim in the
style to which his rank entitled him, including an appropriate
retinue of
attendants, to provide medical services, and to provide him
with an environment
suitable for an invalid—no loud noises or children playing in
the house. The
obligation began nine days after the injury, until which time
he was cared for
by his kin, and continued until he was healed. According to at
least one
source, the practice was abandoned fairly early in favor of a
monetary penalty.
In addition the person responsible for the injury owed a
damage payment based
on the severity of the injury and the honor price of the
victim.

Curial
Justice

The discussion so far has focused on the
system of private
law. It is clear from references in the text that kings had
courts and that
some cases went to such courts, although not clear what cases
went there or to
what degree the division of authority changed over time. It is
possible that the
king’s court was only for cases to which the king was a party
or that it was
the court of an overking settling disputes between the kings
subject to him or
between their subjects. Alternatively, the references may
reflect a process of
shifting law enforcement from private to curial mechanisms.

It seems clear from non-legal sources
that by the time the
law books were written there had been a substantial shift of
authority from the
local kings of the tuath
towards
provincial kings, a shift largely ignored in the legal
material. The private
law material may be a holdover from an earlier period,
retained due to the
conservative nature of legal scholarship, which often included
in the text
older verses on the law. Robin Stacey has suggested that the
statements on
court procedure might have represented an attempt to bring
existing private law
procedures under the authority of the jurist class, possibly
associated with
the increase in royal power.[14]

Court Procedure

There were professional judges and
professional advocates,
both of whom played a role in a trial. According to one
detailed description of
the participants in a trial, they included provincial king,
over kings, bishop,
chief poet, sureties, hostages, witnesses, judges, litigants
and advocates. But
this cannot be a description of all trials, since most would
not have included a
provincial king and overkings and even in a kingdom of three
thousand people
the king and all of the important people around him would not
have been present
for every trial. It maybe
an
idealized version of the most elaborate court procedure the
author could
imagine. But it does suggest that there was a procedure
involving a judge and a
king, although it leaves it uncler what role the king had in
determining the
verdict.

Both judges and advocate were recognized
professions, and
although each king was supposed to have a judge, there is no
suggestion that
every judge was connected to a king. It may be that some sorts
of trials were
held in a royal court with the king and the king’s judge
participating, while
others involved only the judge (or judges—for a major case
there could be
more than one), sureties, witnesses, and spectators.

The first step in a law case was for the
plaintiff to
publicly announce that an offense had been committed. Once the
case commenced,
it was up to the plaintiff’s hired advocate to decide which of
five different
paths of judgement, loosely corresponding to forms of action
in the common law,
to pursue; the suitable path would depend on the nature of the
case and the
path chosen would determine the details of the subsequent
procedure.

The next step was for plaintiff and
defendant to each give
either a pledge or a surety, depending on the path chosen, to
guarantee that he
would abide by the verdict. The judge was also required to
give a
pledge—five ounces of silver—in support of his judgement, and
owed
a fine of eight ounces if he left a case undecided. A judge
who acted unjustly,
as for instance by giving a verdict after hearing only one
side of the case,
loses his honor price and his position as judge; such a
miscarriage of justice
was also supposed to bring supernatural punishment down on the
tuath
where it occurred.

Each party’s advocate would then offer
the argument for his
side; presumably witnesses would also testify at that point.
Each advocate
would then get to rebut the other’s arguments, after which
judgement would be
given and then publicly announced.

As in Jewish law, the legal procedure
might include the
swearing of oaths; under some circumstances someone accused of
an offense could
defend himself by swearing the charge away. Similarly,
witnesses were expected
to support their testimony by oath, and a judge was required
to swear to tell
the truth.

In Irish law, the force of an oath was
linked to the honor
price of the person swearing it; a higher status individual
could “overswear” a
lower status. This appears to imply that an accusation sworn
by an inferior against
a superior could be cancelled by the superior overswearing it,
that in the
opposite case the superior’s accusation stands despite the
inferior’s oath to
the contrary, and that a superior could rebut the testimony of
an inferior in a
case against a third party by overswearing it. Assuming that
this reading is
correct, it is not surprising that the literature contains
warnings of the risk
of lending money to, or in other ways contracting with,
someone of higher
status, especially a king.

It was possible for the oath of one
party in a case to be
supported by the oath of another person, up to the value of
his honor price. It
is not clear if the honor prices of the two oaths added,
making it possible for
two people of lower status to overswear one of higher, or
whether the combined
oath had the weight of the honor price of whichever of the two
was of higher
status. Someone who bears false witness in a case was supposed
to lose his
honor price; it is not clear how his guilt was to be
determined.

If the judge in a case was unable to
determine which party
was in the right, perhaps because there were no witnesses or
the oaths on
either side were evenly balanced, the verdict could be
produced by a random
process or by an ordeal. If, for example, it was known that
one of the animals
in a herd had committed an offense but not which animal, one
would be selected
at random and his owner held liable for the damages. As in
other early legal
systems, someone accused of an offense could offer to prove
his innocence by
submitting to an ordeal such as plunging his hand into boiling
water. If the
hand thereafter showed marks of scalding, the defendant was
held to be guilty,
if not, innocent.[15]

A dispute could also be settled by a
formal duel, analogous
to the Norse holmgang. The terms had to be agreed to
by both parties and
confirmed by sureties on both sides. As in the Norse case, the
duel did not
have to be to the death.[16]

Conclusion

As I hope this brief account makes
clear, early Irish law
was an elaborate and sophisticated system of which we have
very imperfect
information. Its chief interest is in the ways in which
contracts were enforced
and offenses dealt with in a decentralized and private system
of justice. Its
chief puzzle is the relation between that system and a system
of curial
justice, administered under the authority of at least local
kings, with which
it to some extent coexisted.

References

Binchy, D.A. , “Celtic Suretyship, A
Fossilized Indo-European
Institution?”, in Indo-European
and
Indo-Europeans: Papers Presented at the Third Indo-European
Conference at the
University of Pennsylvania, Edited by George Cardona,
Henry M. Hoenigswald
and Alfred Senn. Philadelphia 1970.

Stacey, Robin Chapman, The
Road to Judgement: From Custom to Court in Medieval Ireland
and Wales,
University of Pennsylvania Press, Philadelphia, 1994.

[1]
For a discussion of evidence for the alternative views, see
Kelly pp. 232-237.

[2]
Since the contents of the texts have survived only as
passages quoted in much later
manuscripts, the dating is based mostly on linguistic
evidence.

[3]
“The Irish as well as the Hindu jurists were
‘backward-looking’—men with
a profound respect for antiquity. The more ancient a custom,
the more venerable
it became in their eyes, and the fact that it had long been
obsolete in
practice was quite irrelevant; far from being jettisoned, it
was religiously
reserved, often side by side with the later rule which had
superseded it.”
Binchy 1970, 2, p. 1. “Thus in the 'canonical' tracts which
received their
definitive shape during the seventh and eighth centuries,
side by side with
contemporary rules drafted in classical Old Irish we find
passages which are
more archaic alike in language and in content, and which
doubtless go back to
the oral teaching of the pre-Christian law schools.” Binchy
1970,1, p. 359.

[5]
Ranging from marriage where the wife was betrothed by her
kin through marriage
forbidden by her kin.

[6]
Not true, however, of a lower category of fuidir, the dóerḟuidir
or “base fuidir.”

[7]
“A contract without sureties is normally unenforceable.
However, the texts
provide a considerable number of exceptions to this general
rule.” Kelly pp.
162-3.

[8]
Thurneyson thought that a giall was a
standing hostage surety for all controversies, originally
for his tuath in controversies
between tuaths,
later could also for his
kindred, while an aitire
was a
hostage surety appointed for a single transaction. Stacey
(Chapter 4) argues
that Giall may
have been almost
exclusively for inter-tuath
disputes
and may have been an important person such as the tanist,
the king’s heir, and
that the exact role of aitire is
unclear. If he stood surety for private contracts, it may
have been as a
standing surety not one appointed for the particular
transaction, perhaps to
deal with things such as tort suits for woundings.

[9]
Reference to the discussion of hostages in my “From Imperial
China to
Cyberspace” article.

[10]
It is unclear how decisions for the kingroup were made,
possibly by an
individual selected in some way to represent the others
members.

[12]
This is a simplified account, based on Stacey pp.
XXX—details of
distraint varied with circumstances, and there were
different mechanisms used
to distrain a professional, such as symbolically restraining
him from
practicing his profession until the obligation was
fulfilled. See Kelley pp.
177-182.

[13]
This went to the kin, except that a third of it might go to
someone outside the
kin whose assistance had been necessary in collecting the
claim, such as a
lord.